Tokio Marine Insurans (Malaysia) Berhad v Subramaniam a/l Mathupaiyan (WA-24NCC-433-10/2021)

SUBRAMANIAM A/L MATHUPAIYAN (No. K/P: 610526-05-5347)

DEVAN A/L MARIMUTHU (No. K/P: 891014-01-6479

YOGESWARAN A/L MARIMUTHU (No. K/P: 860119-23-7401) … DEFENDAN-DEFENDAN JUDGMENT [1] This was an application by the Plaintiff via its Amended Originating Summons dated 29.1.2021 (Enclosure 13) for a declaration in respect of the enforceability of an insurance policy under Section 96(3) of the Road Transport Act 1987 (“RTA”) (“this Application”). [2] This Application was amended to include the 2nd and 3rd Defendants by way of Order dated 1.11.2021. The reliefs sought in this Application are as follows: “1. Masa (jika perlu) dilanjutkan untuk memfailkan Saman Pemula ini;

Polisi No. V5504109 yang melindungi motorkereta No: JNL 7969 bagi tempoh 11.02.2018 hingga 10.02.2019 adalah tak sah (void) dan tidak boleh dikuatkuasakan (unenforceable) setakat perlindungan terhadap satu kemalangan jalanraya yang berlaku pada 06.05.2018 yang melibatkan motorsikal No: JLE 7372 dan motorkereta No: JNL 7969;

Selanjutnya, Plaintif tidak bertanggungjawab untuk menanggung sebarang penghakiman/perintah berikutan dengan tindakan Sivil di Mahkamah Sesyen Johor Bahru, Johor, Malaysia Guaman No: JA-B53KJ- 185-11/2019 dan/atau sebarang tuntutan lain yang berbangkit dari kemalangan jalanraya yang berlaku pada 06.05.2018 yang melibatkan motorsikal No: JLE 7372 dan motorkereta No: JNL 7969;

Kos permohonan ini; dan

Sebarang perintah atau arahan lanjutan yang dianggap sesuai dan manfaat oleh Mahkamah yang mulia ini.” Page 3 of 19 [3] The 1st Defendant was unrepresented and did not file any affidavit in respect of this Application. [4] Therefore, only the 2nd and 3rd Defendants opposed this Application. [5] After hearing submissions from both counsel for the Plaintiff and the 2nd and 3rd Defendants, I decided to allow this Application in part where the declarations sought were in respect of the 1st Defendant but not as against the 2nd and 3rd Defendants. [6] The Plaintiff being dissatisfied with my decision has filed a Notice of Appeal dated 1.7.2022 (Enclosure 35) against what appears to be the entire decision when part of it actually favours the Plaintiff. This Court did not disallow or “menolak” the entirety of this Application in Enclosure 13 as it seems to be stated in the said Notice of Appeal. [7] Be that as it may, below are the reasons for my decision. A] SALIENT BACKGROUND FACTS [8] The Plaintiff is an insurance company and had vide Policy No: V5504109 (“Policy”) provided motor insurance coverage for motorcar no. JNL 7969 (“Insured Vehicle”) for the period 11.2.2018 until 10.2.2019. [9] The Policy was issued in the name of the 1st Defendant who is the policyholder. [10] The 2nd and 3rd Defendants initiated a civil action at Johor Bahru Sessions Court vide Writ No: JA-B53KJ-185-11/2019 against one Jayakumar a/1 Jayaraman (“Jayakumar”) and the 1st Defendant (“the Accident Suit”). Page 4 of 19 [11] In the Accident Suit the 2nd and 3rd Defendants claimed for special and general damages against Jayakumar and the 1st Defendant in respect of an accident that the 2nd and 3rd Defendants allege occurred on 16.5.2018 involving motorcycle no. JLE 7372 which was ridden by the 2nd Defendant and the Insured Vehicle which was driven by Jayakumar (“the Accident”). [12] A police report was lodged by the 2nd Defendant on 6.8.2018 while Jayakumar lodged his police report on 8.5.2018 regarding the Accident. [13] Investigations were subsequently carried out by the Plaintiff’s Adjuster to investigate the Accident and interview the relevant parties. According to the Plaintiff, the Plaintiff’s Adjuster’s investigation showed that the Insured Vehicle was sold by the 1st Defendant in February 2018 to someone by the name of Visvam a/l Siageran Ramasamy (“Visvam”). [14] It must be highlighted at this juncture that the Plaintiff’s Adjuster’s investigation report was not exhibited in this Application. [15] The 1st Defendant made a Statutory Declaration on 12.7.2021 stating, inter alia, as follows: “(1) Saya adalah pemilik sah kereta jenis Perodua Viva dengan nombor pendaftaran JNL 7969 sehingga Bulan February 2018. (selepas ini dirujuk sebagai kenderaan tersebut).

Pada Bulan February tahun 2018, saya telah menjual kenderaan tersebut kepada seorang lelaki India bemama Visvam A/L Siageran Ramasamy (No Kad Pengenalan: 840812-01-5235).

Saya tidak menerima sebarang wang pendahuluan darinya kerana dia sambung bayaran bulanan bank sebanyak RM450.00 kepada Public Bank dimana saya telah mengambil pinjaman untuk membeli kenderaan tersebut.

Saya tidak menukar nama pemilik kenderaan kepada lelaki tersebut.

Selepas saya menjual kenderaan tersebut, saya tidak lagi bertanggungjawab ke atas kenderaan tersebut. Page 5 of 19

Saya hanya mengetahui mengenai kes kemalangan yang melibatkan kenderaan tersebut pada 06/05/2018 di Jalan Masai - Kong Kong pada awal tahun 2021 setelah diberitahu oleh pihak Adjuster Insuran Tokio Marine yang melawat rumah saya tetapi saya tidak tahu siapa yang memandu kenderaan tersebut dan bagaimana kemalangan tersebut berlaku.” (own emphasis added) [16] Visvam also made a Statutory Declaration on 12.7.2021 which contents are, inter alia, as follows: “(1) Saya telah membeli sebuah kereta milik Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347) jenis Perodua Viva dengan nombor pendaftaran JNL 7969 pada Bulan February 2018 tanpa membuat apa-apa surat perjanjian.

Saya telah mengunakan kereta tersebut bernombor pendaftran JNL 7969 dari bulan February 2018 sehinggalah berlakunya kemalangan jalan raya pada 06/05/2018.

Saya tidak menukar nama pemilik kenderaan daripada Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347) kepada nama saya kerana saya telah bersetuju untuk membuat urusniaga kereta tersebut.

Setelah saya membeli kereta milik Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347) bernombor JNL 7969, saya dengan diri sendiri telah memperbaharui kesemua Polisi Insuran dan Cukai Jalan Motor kenderaan tersebut setiap tahun dari tahun 2018 sehingga kini tanpa rujukan kepada Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347).

Saya telah bersetuju untuk membuat semua bayaran mengenai kereta tersebut tanpa sebarang rujukan kepada Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347).

Rakan sekerja saya benama Jayakumar A/L Jayaraman (No. Kad Pengenalan: 850707-04-5183) telah meminjam kereta JNL 7969 dan telah terlibat dalam satu kemalangan jalan raya pada 06/05/2018 jam lebih kurang 10.40 malam di Jalan Masai - Kong Kong apabila kereta itu berada dalam jagaan saya. Page 6 of 19

Saya faham bahawa selepas saya membeli kereta milik Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347) bernombor JNL 7969 pada tahun 20I8. hanya sayalah yang bertanggungjawab terhadap kereta itu dan bukanlah Subramaniam A/L Mathupaiyan, (No. Kad Pengenalan: 610526-05-5347).

Saya juga sedar akan hukuman sekiranya deklarasi salah berkenaan perkara di atas dan bahawa say a boleh dihukum dibawah Kanun Keseksaan (Akta 574) dibaca bersama seksyen 3 AAkta Berkamm 1960 (Akta 13) atau mana-mana Undang-Undang yang boleh dipakai di Malaysia.” (own emphasis added) [17] The Plaintiff contends as follows: i) There is no insurable interest in that when the Insured Vehicle was sold the insurance cover lapses and following this all the benefits derived under the Policy also lapses; ii) The 1st Defendant does not know Jayakumar and therefore cannot give his consent or permission for Jayakumar to drive the Insured Vehicle. Hence, Jayakumar is an unauthorised driver as he was driving the Insured Vehicle without the consent and permission of the 1st Defendant. B] DECLARATION UNDER SECTION 96(3) RTA [18] The declarations sought by the Plaintiff in this Application are governed by Section 96(3) RTA and for completeness Sections 96(1), (2) and (3) RTA are reproduced below: “(1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or Page 7 of 19 cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements.

No sum shall be payable by an insurer under subsection (1)-

in respect of any judgement, unless before or within seven days after the commencement of the proceedings in which the judgement was given, the insurer had notice of the proceedings;

in respect of any judgement, so long as execution thereon is stayed pending an appeal; or

in connection with any liability, if before the happening of the event which was the cause of the death or bodily injury giving rise to the liability the policy was cancelled by mutual consent or by virtue of any provision contained therein and either-

before the happening of the said event the certificate was surrendered to the insurer or the person to whom the certificate was delivered made a statutory declaration stating that the certificate had been lost or destroyed;

(ii) after the happening of the said event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer or the person to whom the certificate was delivered made such a statutory declaration as aforesaid; or

(iii) either before or after the happening of the said event, but within the said period of fourteen days, the insurer has commenced proceedings under this Part in respect of the failure to surrender the certificate.

No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had Page 8 of 19 obtained a declaration from a court that the insurance was void or unenforceable: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgement obtained in proceedings commenced before the commencement of that action unless, before or within seven days after the commencement of that action, he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the grounds on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled if he thinks fit to be made a party thereto.” (own emphasis added) [19] The provisos to Section 96(3) RTA have been complied with in that the 2nd and the 3rd Defendants (being the plaintiffs in the Accident Suit) have been notified of this Application and have further been parties to this Application. In addition, no judgment has been obtained in the Accident Suit at the time this Application was decided (Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd [2015] 9 CLJ 821; Allianz General Insurance Company (M) Bhd v. Vijindran a/l Kalaichelvan & Ors [2017] MLJU 2177). [20] In the circumstances, I will now deal with the issues raised by the Plaintiff in support of this Application as stated earlier. C] INSURABLE INTEREST AND UBERRIMAE FIDEI (NON-DISCLOSURE OF THE SALE OF THE INSURED VEHICLE) [21] There are two issues regarding the purported sale of the Insured Vehicle. The first is the issue of whether the insurable interest has ceased and the second issue, which is tied to the first issue, is the effect of the 1st Defendant’s breach of his duty to act in utmost good faith (uberrimae fidei). These two issues can be dealt with together as one that is whether the insurable interest has ceased. Page 9 of 19 [22] This, in turn, raises two issues for determination and they are as follows: i) Whether the sale of the Insured Vehicle, if indeed there was a sale, would affect the insurable interest or the Policy; and ii) Whether there was in fact a sale of the Insured Vehicle. [23] Issue no. (ii) above was deliberately placed as the second issue because it would not make any difference if the Insured Vehicle was actually sold if the answer to issue no. (i) is in the negative. [24] I had the opportunity to deal with these very same issues in Amgeneral Insurance Bhd v. Mohamad Kassim Saad & Ors [2022] 2 CLJ 565 which facts were similar to the present case. [25] Ultimately, in Mohamad Kassim (supra) I answered issue no. (i) above in the negative in that the sale of the insured vehicle would not affect the insurable interest or the Policy. [26] I took the same position in the present case and as in Mohamad Kassim (supra) relied on the following Court of Appeal cases: i) Muhamad Haqimie Hasim & Anor v. Pacific & Orient Insurance Co [2018] 1 LNS 627; [2018] MLJU 629; and ii) Abuseman Jamaluddin v. Etiqa Takaful Bhd [2020] 10 CLJ 151; [2021] 1 MLRA 100. [27] In Muhamad Haqimie (supra) the Court of Appeal held that the sale of the insured vehicle did not render the policy ineffective or cause it to lapse. Justice Nallini Pathmanathan (as she then was, now Federal Court Judge) speaking on behalf of the Court of Appeal, inter alia, held as follows: “[11] We have given anxious consideration to the competing claims of the parties. Having done so we are of the unanimous view that the appeal ought to be allowed for the following reasons: Page 10 of 19

The central issue for consideration here is whether the alleged transfer of interest from Normala to Lalmiya had the effect of rendering the policy ineffective or causing it to lapse.

(ii) Section 13 of the RTA sets out the procedure to be adopted upon change of possession upon transfer pursuant to a sale. It requires that the new possessor or new owner register himself within seven days of such change of possession. This was not done in the instant case.

(iii) Section 109(1) deems the registered owner to be the owner of that vehicle for the purpose of any inter alia proceedings under the RTA. The current proceedings fall within the RTA.

(iv) Accordingly Normala is deemed to be the registered owner of the vehicle, not Lalmiya. There is therefore no transfer of interest from Normala to Lalmiya by operation of law.

Therefore Normala remains the insured for the purposes of the accident. As such it would follow that the insurer remains liable to compensate the plaintiffs for any injuries suffered as a consequence of the accident. That is the primary function of this part of the RTA.

(vi) We are fortified in our decision by sections 94 and 95 of the RTA which provide that conditions in a policy of insurance are deemed to be of no effect, again by operation of law, in relation to liability of the insurers to third parties.

(vii) Section 94 provides that any condition in a policy issued providing that no liability shall arise under that policy or that any liability so arising shall cease in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy shall be of no effect in connection with claims under section 91(1)(b).

(viii) Section 91(1)(b) relates to third party claims such as the present.

(ix) It follows from these sections that any term in the policy of insurance avoiding liability for unauthorised drivers is of no effect under section 94 and 91(1)(b). (own emphasis added) Page 11 of 19 [28] It must be emphasised that similar to the case of Muhamad Haqimie (supra) the Insured Vehicle in the present case remained in the name of the 1st Defendant. The 1st Defendant and Visvam both admitted in their respective Statutory Declarations that the change of ownership of the Insured Vehicle was not affected. Thus, the 1st Defendant remains the registered owner of the Insured Vehicle at the time of the Accident and the Insured Vehicle remains insured. [29] The Court of Appeal in Abuseman (supra) referred to Muhamad Haqimie (supra) and arrived at the same conclusion. Justice Badariah Sahamid speaking on behalf of the Court of Appeal held, inter alia, as follows: “[34] The effect of s. 96 read with s. 94 of the RTA 1987 has been considered and pronounced in the following cases. In the case of Malaysia National Insurance Sdn Bhd v. Lim Tiok [1997] 2 CLJ 351; [1997] 2 MLJ 165, the Supreme Court endorsed the view that the underlying purpose of compulsory motor insurance against third party risks was to ensure that innocent third parties who were injured in vehicular accidents were given full and effective protection, regardless of the private insurance arrangement between the insurer and the insured. [35] One of the issues raised before the Supreme Court in Malaysia National Insurance (supra ) was whether s. 80 of the Road Traffic Ordinance 1958 limits the liability of an insurer to pay to an injured third party an amount equal to the proportionate liability of the policy holder (insured)? Edgar Joseph Jr FCJ had considered the effect of s. 80(4) - now s. 96(4) of the RTA 1987 and stated as follows: One effect of section 80(4) of the Ordinance is that since liability of insurers against third party risks under section 80(1) is unlimited, any kind of limitation, whether stipulating that the insured has to pay the first X RM of any liability or that the insurance company would not pay more than Y RM of any liability, or by means of a rateable contribution clause, would be void and ineffective as against a third party who can recover the full amount from the insurance company. But the insurance company may have a right of recovery of any excess from its insured. However, it could be objected that such a policy does not comply with the requirements of s. 75(1) of the Ordinance (equivalent to s. 9(1) of the Act). Page 12 of 19 Section 80(4) also contemplates a situation where the policy is voidable at common law on the ground of non-disclosure or misrepresentation of material facts and the insurance company has not taken the necessary steps under s. 80(3) to obtain a declaration as to non-liability on this ground in time or at all or if the policy is voidable, under a condition of the policy. In such a situation, the insurance company would still be legally obliged to pay a third party in enforcement proceedings brought under s. 80(1) but it has a right of recovery from its insured. ... To recapitulate, as the language of s. 80(1) expressly directs attention to the liability covered by 'the terms of the policy', in construing the subsection it is necessary to have regard to the terms of the policy (see Bankers & Traders Insurance Co. Ltd v. National Insurance Co. Ltd., per Lord Scarman), subject to the statutory provisions rendering certain conditions or restrictions of no effect against third parties) (see ss. and 79 of the Ordinance - now ss. 94 and 95 of the Act and derived from s. 38 of the UK Road Traffic Act 1930 and s. 12 of the UK Road Traffic Act 1934). (emphasis added) [36] In the recent decision of Muhamad Haqimie Hasim & Anor v. Pacific & Orient Insurance Co Bhd [2018] 1 LNS 627; [2018] MYCA Civil Appeal No. W- 04(NCC) (W)-15-01-2017, the Court of Appeal had occasion to consider the effect of inter alias. 94 of the RTA 1987, in circumstances where the registered owner of the insured vehicle had sold the vehicle to another person, although the insured's name remained on the registration card as the legal owner of the vehicle. The Court of Appeal held the registered owner remains the insured for the purposes of the accident and that the insurer is liable to compensate the plaintiffs for any injuries suffered as a consequence of the accident. The Court of Appeal had stated as follows: ... (vi) We are fortified in our decision by section 94 and 95 of the RTA which provide that conditions in a policy of insurance are deemed to be of no effect, again by operation of law, in relation to liability of insurers to third parties.

(vii) Section 94 provides that any condition in a policy issued providing that no liability shall arise under that policy or that any liability so arising shall cease in the event of some specified thing being done or omitted Page 13 of 19 to be done after the happening of the event giving rise to a claim under the policy shall be of no effect in connection with claims under section 91(1)(b).

(viii) Section 91(1)(b) relates to third party claims such as the present. [37] In view of the above, s. 94 of the RTA 1987 strictly prohibits the applicant, Etiqa Takaful Bhd from repudiating its liability to the second respondent on the grounds that the insured (first respondent) had breached specific conditions of the insurance policy. Consequently, the second respondent can proceed to execute his rights under s. 96(1) of the RTA 1987 and claim against the applicant. Thus the second respondent's statutory rights under s. 96(1) of the RTA 1987 is fully preserved notwithstanding the declaratory order of the High Court against the first respondent. (own emphasis added) [30] One of the differences in Abuseman (supra) as compared to Muhamad Haqimie (supra) is that the Court of Appeal in Abuseman (supra) held that the breach of the terms of the policy would only affect the policyholder but not third parties. In this regard the Court of Appeal held as follows: “[24] The crux of this appeal is premised on the statutory interpretation of relevant sections of the RTA 1987, in particular where it relates to third parties to an insurance contract, as is the case of the 2nd respondent in this appeal. The gist of the contention of the 2nd respondent is that s 96 of the RTA 1987 should be read with s 94 of the RTA 1987. Section 94 in effect renders any condition excluding insurers from liability under the policy to third parties to be inoperative. Such a reading, it was further submitted, would enforce the spirit of the RTA 1987 which is essentially a social legislation which seeks to preserve the rights of third parties in the event that a policy is repudiated by an insurer due to breaches of the policy by the insured. Any such breach or breaches of the insurance contract by the insured (the first respondent) can only be grounds for repudiation inter partes against the insured but is inoperative against any third parties as expressly stipulated in s 94 RTA

(own emphasis added) Page 14 of 19 [31] I am bound by the doctrine of stare decisis to follow the principles laid down in Muhamad Haqimie (supra) and Abuseman (supra) as stated above. [32] In this regard, learned counsel for the Plaintiff did not refer to either Muhamad Haqimie (supra) or Abuseman (supra) in her submissions. The following cases cited by learned counsel for the Plaintiff on this issue were High Court cases (one from the English High Court) and all of which were decided before Muhamad Haqimie (supra) and Abuseman (supra): i) Kurnia Insurans (Malaysia) Berhad v. Personal Representative of Zenol bin Saad & 3 Ors [2013] 1 AMCR 703 ii) Bibendum Sdn Bhd v. Amanah Scott Properties (KL) Sdn Bhd [2011] AMCR 792; iii) Peters v. General Accident & Life Assurance Corporation Ltd (1937) 4 AER 628. [33] There was, nevertheless, one Federal Court case cited by learned counsel for the Plaintiff on this issue and that is Roslan Bin Abdullah v. New Zealand Insurance Company Co. Ltd [1981] 1 MLRA 445. However, this case is not applicable due to changes in the law. In Mohamad Kassim (supra), I had also examined Roslan Bin Abdullah (supra) and held as follows: “[56] It is important to note that New India Assurance (supra) was based on, inter alia, the Road Traffic Ordinance, 1958 while Roslan bin Abdullah (supra) was based on, inter alia, the Motor Vehicles (Third Party Risks) Ordinance (Cap. 130) and Road Traffic Act, 1934. All these provisions are no longer applicable.” [34] As I already determined that the sale of the Insured Vehicle, even if it had actually taken place, would not affect the Policy, it is not necessary for me to deal with the issue of whether the Insured Vehicle was actually sold. Page 15 of 19 D] UNAUTHORISED DRIVER [35] Learned counsel for the Plaintiff submitted that the Policy only covers persons who drove the Insured Vehicle with the consent and permission of the policyholder as stated in the Certificate of Insurance. [36] This issue was also determined specifically in Muhamad Haqimie (supra) and generally in Abuseman (supra) in relation to the liability of an insurer towards any third party where there was a breach by the insured of the terms of the Policy. [37] The Court of Appeal in Muhamad Haqimie (supra) clearly held at paragraph 11(ix) as follows: “(ix) It follows from these sections that any term in the policy of insurance avoiding liability for unauthorised drivers is of no effect under section 94 and 91(1)(b).” (own emphasis added) [38] This ought to be read with Abuseman (supra) which held that the breach of the insurance policy by the insured would only affect the Policy as far as it pertains to the insured and not any third party. E] CONCLUSION [39] Applying the principle in Abuseman (supra), I was inclined to allow in part the declarations sought by the Plaintiff in this Application where they involved the 1st Defendant as he had admitted to committing a breach of the terms of the Policy in, inter alia, not disclosing to the Plaintiff that he had sold the Insured Vehicle. This was stated in the 1st Defendant’s Statutory Declaration which was Page 16 of 19 corroborated by Visvam’s Statutory Declaration. Further, the 1st Defendant also admitted he was complicit in a “sambung bayar” arrangement which is in itself wrongful. This then translates to a breach of the 1st Defendant’s duty to act in utmost good faith or uberrimae fidei. As such, I reasonably concluded that the Policy was not enforceable in respect of the 1st Defendant. [40] Therefore, I allowed the declarations sought by the Plaintiff in this Application in so far as it relates to the 1st Defendant, as follows: i) In respect of prayer 2 of this Application: “Polisi No. V5504109 yang melindungi motorkereta No: JNL 7969 bagi tempoh 11.02.2018 hingga 10.02.2019 adalah tidak boleh dikuatkuasakan (unenforceable) setakat perlindungan terhadap satu kemalangan jalanraya yang berlaku pada 06.05.2018 yang melibatkan motorsikal No: JLE 7372 dan motorkereta No: JNL 7969 terhadap Defendan Pertama sahaja” ii) In respect of prayer 3 of this Application: “Selanjutnya, Plaintif tidak bertanggungjawab untuk menanggung sebarang penghakiman/perintah berikutan dengan tindakan Sivil di Mahkamah Sesyen Johor Bahru, Johor, Malaysia Guaman No: JA-B53KJ-185-11/2019 dan/atau sebarang tuntutan lain yang berbangkit dari kemalangan jalanraya yang berlaku pada 06.05.2018 yang melibatkan motorsikal No: JLE 7372 dan motorkereta No: JNL 7969; terhadap Defendan Pertama sahaja” [41] In order to avoid any confusion that there were no declarations granted that the Policy is not enforceable against the 2nd and 3rd Defendants, I made the following additional Order: “Polisi No. V5504109 yang melindungi motorkereta No: JNL 7969 bagi tempoh 11.02.2018 hingga 10.02.2019 adalah berkuatkuasa (enforceable) terhadap Defendan Kedua dan Ketiga berkenaan kemalangan jalanraya yang berlaku pada 6.5.2018 yang melibatkan motorsikal No. JLE 7372 dan motorkereta No. JNL 7969” Page 17 of 19 [42] For the reasons stated above, I allowed this Application in part as stated above and after hearing arguments on costs, granted costs of RM5,000 in favour of the 2nd and 3rd Defendants subject to allocator. Dated this 29th day of August, 2022 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judicial Commissioner High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) COUNSEL FOR THE PLAINTIFF R Ratha Messrs S.G. Lingam & Co. No. 27, Jalan Bukit Desa 5 Taman Bukit Desa 58100 Kuala Lumpur. Tel: 03-7984 7771 Email: sgl@sglingam.com Page 18 of 19 COUNSEL FOR THE 2ND and 3RD DEFENDANTS Balaskanda A/l Thamotharam Tetuan Zaman & Associates Suite 12-01 & 12-02, Level 12 Menara TJB No. 9, Jalan Syed Mohd Mufti 81000 Johor Bahru Johor Darul Takzim. Tel: 07-2229788/789 Email: zamanassociates@rocketmail.com LEGISLATION / RULES CITED Road Transport Act 1987 ▪ Sections 96(1), (2) and (3)

Abuseman Jamaluddin v. Etiqa Takaful Bhd [2020] 10 CLJ 151; [2021] 1 MLRA 100 2. Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd [2015] 9 CLJ 821 3. Allianz General Insurance Company (M) Bhd v. Vijindran a/l Kalaichelvan & Ors [2017] MLJU 2177 4. Amgeneral Insurance Bhd v. Mohamad Kassim Saad & Ors [2022] 2 CLJ 565 5. Bibendum Sdn Bhd v. Amanah Scott Properties (KL) Sdn Bhd [2011]

Kurnia Insurans (Malaysia) Berhad v. Personal Representative of Zenol bin Saad & 3 Ors [2013] 1 AMCR 703

Muhamad Haqimie Hasim & Anor v. Pacific & Orient Insurance Co [2018] 1 LNS 627; [2018] MLJU 629 8. Peters v. General Accident & Life Assurance Corporation Ltd (1937) 4 AER 628 9. Roslan Bin Abdullah v. New Zealand Insurance Company Co. Ltd [1981] 1 MLRA 445